Case Summaries – Page 115 – Electronic Discovery Law

In re VERP Inv., LLC, 457 S.W.3d 255 (Tex. Ct. App. 2015)

Dec 01 2015

Key Insight: Trial court abused its discretion by ordering forensic examination of landlord?s hard drive where ?[t]he procedural protections identified in In re Weekley Homes require that ?the requesting party must show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data,? and that ?the responding party?s production ?has been inadequate and that a search of the opponent?s [electronic storage device] could recover … relevant materials[],?? where the tenant provided no evidentiary basis for his suspicion that the at-issue invoices were falsified, and where the tenant ?did not put on any evidence demonstrating that the kind of information he sought could be retrieved by the examination ultimately ordered by the trial court and the record [wa]s devoid of any attempt by Nguyen to explain this search methodology except for his counsel?s explanation that the search would attempt to exclude communications with counsel?

Electronic Data Involved: Accounting-related ESI

Osborne v. Billings Clinic, No. CV 14-126-BLG-SPW, 2015 WL 1412626 (D. Mont. Mar. 26, 2015)

Dec 01 2015

Key Insight: Where requesting party failed to request a specific format of production and the responding party therefore produced in PDFs, the court reasoned that Defendant failed to assert that it could not produce the information as it was originally kept and that Plaintiff should not be at a ?disadvantage by having to slog through thousands of pages of records in unusable form? and granted Plaintiff?s motion to compel production of the at-issue medical records in the manner in which they were maintained

Electronic Data Involved: Electronically stored medical records

In re Milo?s Kitchen Dog Treats Consol. Cases, No. 12-1011, —F.R.D.—, 2015 WL 1650963 (W.D. Pa. Apr. 14, 2015)

Dec 01 2015

Key Insight: Upon Defendant?s motion to compel production of all of Plaintiff?s Facebook materials, the court found ?nothing improper? in Plaintiff?s redaction of irrelevant information from her prior Facebook production, distinguishing the present case from Largent v. Reed, 2011 WL 5632688 (Pa. Ct. Com. Pl. Nov. 8, 2011) in which the court compelled production of Plaintiff?s username and password, and reasoned, in part, that Plaintiff had already provided Facebook information relevant to the case and that Defendant failed to show that further production would result in more relevant information or that Plaintiff?s counsel?s assessment of relevance was questionable

Nature of Case: Claims related to harm to pet from jerky treats

Electronic Data Involved: Facebook (Social Media)

State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., No. 4:14-CV-11521, 2015 WL 4094115 (E.D. Mich. July 7, 2015)

Dec 01 2015

Key Insight: Court granted motion to compel and rejected objections based on burden where Defendants offered no evidence in support of the alleged claims of burden nor ?any specificity regarding the approximate cost of production?

Nature of Case: Fraud

Electronic Data Involved: ESI

Grove City Veterinary Serv. LLC v. Charter Practices Int?l, LLC, No. 3:13-cv-02276-AC, 2015 WL 4937393 (D. Or. Aug. 18, 2015)

Dec 01 2015

Key Insight: Where Plaintiff had a ?continuing business relationship? with Defendant despite the pending litigation and Defendant hosted Plaintiff?s emails on its servers, court rejected Plaintiff?s claim that Defendant?s changes to the email-archiving system resulted in a loss of Plaintiff?s emails where Plaintiff could provide no evidence of Defendant?s alleged access to Plaintiff?s emails and where Defendant credibly posited that Plaintiff had accidentally ?dragged and dropped? the missing email folders into the ?Notes? tab of the archived mailbox (where the emails were ultimately located); court also declined to impose sanctions for Defendant?s initial refusal to assist Plaintiff to locate the emails (that it had requested) where it had no duty to do so, and where despite that lack of duty, it nonetheless ultimately made a good faith, but unsuccessful, search effort; Defendant?s litigation hold on Plaintiff?s email account to retain copies of messages that anyone attempted to delete did not warrant sanctions, despite Plaintiff?s claim that the hold was ?worse than spoliation? because ?unlike evidence unlawfully destroyed by a party, evidence placed in a litigation hold is still available to the party implementing the litigation hold?

Nature of Case: Breach of contract

Electronic Data Involved: Emails

Spotted Horse v. BNSF Ry. Co., 350 P.3d 52 (Mont. 2015)

Dec 01 2015

Key Insight: Where district court abused its discretion when it declined to impose a meaningful sanction on railroad for allowing destruction of accident scene video footage during its pre-litigation investigation, the Court remanded for a new trial and ordered the district court to fashion a sanction that would satisfy the remedial and deterrent goals of sanctions for the spoliation of evidence, but the Court also said that district court?s refusal to grant injured machinist?s request for a default judgment as an evidentiary sanction for spoliation was not an abuse of discretion because it was not possible to know if the destruction was intentional or inadvertent

Nature of Case: Workplace injury

Electronic Data Involved: Digital video surveillance recording

Evans v. Quintiles Transnational Corp., No. 4:13-cv-00987-RBH, 2015 WL 9455580 (D.S.C. Dec. 23, 2015)

Dec 01 2015

Key Insight: Reasoning that the ?issues of whether the alleged computer file ever existed and, if it did, whether and when Quintiles should have reasonably known that the evidence may be relevant to the anticipated litigation, and whether Quintiles willfully lost or destroyed the computer file rests on credibility determinations that this Court is not in a position make at this stage? and noting the ?disputed facts at issue,? the court indicated its inclination to ?to provide the jury with appropriate guidelines and instructions so that they, after hearing all of the evidence, can resolve any credibility questions and make a determination, first, as to whether the alleged computer file even existed on Plaintiff?s computer, whether and when Quintiles should have reasonably known that the evidence may be relevant to anticipated litigations, and, if so, whether Quintiles willfully lost or destroyed the file? and invited the parties to submit proposed jury instructions

Nature of Case: Wrongful Termination

Electronic Data Involved: Contents of laptop

United States v. Zaragoza-Moreira, 2015 WL 1219535 (C.A.9 (Cal.) Mar. 18, 2015)

Dec 01 2015

Key Insight: Court reversed and remanded case to the district court with directions to dismiss indictment in this criminal case after finding that Homeland Security Investigations agent acted in bad faith and in violation of defendant?s due process rights in failing to preserve video footage of defendant the agent knew to be of exculpatory value to the defendant, which the court found was established by a transcript of the agent?s interview with the defendant. The court also noted that the government?s failure to take action in response to a letter from defense counsel to the Assistant United States Attorney requesting preservation of the video tapes related to the defendant?s arrest or events leading to the arrest was ?particularly disturbing,? but declined to decide whether that failure also constituted bad faith given that they had already found bad faith on the part of the HSI agent.

Nature of Case: Criminal

Electronic Data Involved: Video footage

Nuvasive, Inc. v. Madsen Med., Inc., No. 13cv2077 BTM(RBB), 2015 WL 4479147 (S.D. Cal. July 22, 2015)

Dec 01 2015

Key Insight: For Defendant?s failure to preserve its employees? text messages, court imposed an adverse inference.

Electronic Data Involved: Text messages

Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., No. 6:14-cv-740-Orl-41TBS, 2015 WL 1470971 (M.D. Fla. Mar. 31, 2015)

Dec 01 2015

Key Insight: Where Plaintiff produced documents ?en masse? without any indication of what was produced or what request the documents were responsive to and claimed that they were produced as kept in the usual course of business and thus in compliance with Rule 34, the court reasoned that a party who produces documents as kept in the usual course has the burden of proving they were in fact produced in that manner and that a party may not wait until a motion to compel is filed to provide that information and concluded that Plaintiff had not complied with the requirements of Rule 34(b)(2)(E)(i) and ordered that Plaintiff must identify by Bates number which documents were responsive to each request

Electronic Data Involved: ESI

Catagory:Case Summaries